Requires that all felony offenders shall be eligible for parole after serving no more than twenty-five years of their sentence and eliminates the possibility of serving consecutive terms of imprisonment which exceed a twenty-five year sentence.
STATE OF NEW YORK
________________________________________________________________________
2779
2021-2022 Regular Sessions
IN SENATE
January 25, 2021
___________
Introduced by Sen. SEPULVEDA -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the correction law and the criminal
procedure law, in relation to parole eligibility for felony offenders;
and to repeal subdivision 2-a of section 70.20 of the penal law relat-
ing thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 60.06 of the penal law, as amended by chapter 482
2 of the laws of 2009, is amended to read as follows:
3 § 60.06 Authorized disposition; murder in the first degree offenders;
4 aggravated murder offenders; certain murder in the second
5 degree offenders; certain terrorism offenders; criminal
6 possession of a chemical weapon or biological weapon offen-
7 ders; criminal use of a chemical weapon or biological weapon
8 offenders.
9 When a defendant is convicted of murder in the first degree as defined
10 in section 125.27 of this chapter, the court shall, in accordance with
11 the provisions of section 400.27 of the criminal procedure law, sentence
12 the defendant to death, to life imprisonment [without parole in accord-
13 ance with subdivision five of section 70.00 of this title,] with eligi-
14 bility for parole after twenty-five years or to a term of imprisonment
15 for a class A-I felony other than a sentence of life imprisonment [with-
16 out parole] with eligibility for parole after twenty-five years, in
17 accordance with subdivisions one through three of section 70.00 of this
18 title. When a person is convicted of murder in the second degree as
19 defined in subdivision five of section 125.25 of this chapter or of the
20 crime of aggravated murder as defined in subdivision one of section
21 125.26 of this chapter, the court shall sentence the defendant to life
22 imprisonment [without parole in accordance with subdivision five of
23 section 70.00 of this title] with eligibility for parole after twenty-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05554-01-1
S. 2779 2
1 five years. When a defendant is convicted of the crime of terrorism as
2 defined in section 490.25 of this chapter, and the specified offense the
3 defendant committed is a class A-I felony offense, or when a defendant
4 is convicted of the crime of criminal possession of a chemical weapon or
5 biological weapon in the first degree as defined in section 490.45 of
6 this chapter, or when a defendant is convicted of the crime of criminal
7 use of a chemical weapon or biological weapon in the first degree as
8 defined in section 490.55 of this chapter, the court shall sentence the
9 defendant to life imprisonment [without parole in accordance with subdi-
10 vision five of section 70.00 of this title] with eligibility for parole
11 after twenty-five years; provided, however, that nothing in this section
12 shall preclude or prevent a sentence of death when the defendant is also
13 convicted of murder in the first degree as defined in section 125.27 of
14 this chapter. When a defendant is convicted of aggravated murder as
15 defined in subdivision two of section 125.26 of this chapter, the court
16 shall sentence the defendant to life imprisonment [without parole] with
17 eligibility for parole after twenty-five years or to a term of imprison-
18 ment for a class A-I felony other than a sentence of life imprisonment
19 [without parole, in accordance with subdivisions one through three of
20 section 70.00 of this title] with eligibility for parole after twenty-
21 five years.
22 § 2. Subparagraph (i) of paragraph (a) of subdivision 3 and subdivi-
23 sion 5 of section 70.00 of the penal law, subparagraph (i) of paragraph
24 (a) of subdivision 3 as amended by chapter 107 of the laws of 2006 and
25 subdivision 5 as amended by section 40-a of part WWW of chapter 59 of
26 the laws of 2017, are amended to read as follows:
27 (i) For a class A-I felony, such minimum period shall not be less than
28 fifteen years nor more than twenty-five years; provided, however, that
29 (A) where a sentence, other than a sentence of death or life imprison-
30 ment [without parole] with eligibility for parole after twenty-five
31 years, is imposed upon a defendant convicted of murder in the first
32 degree as defined in section 125.27 of this chapter such minimum period
33 shall be not less than twenty years nor more than twenty-five years,
34 and, (B) where a sentence is imposed upon a defendant convicted of
35 murder in the second degree as defined in subdivision five of section
36 125.25 of this chapter or convicted of aggravated murder as defined in
37 section 125.26 of this chapter, the sentence shall be life imprisonment
38 [without parole] with eligibility for parole after twenty-five years,
39 and, (C) where a sentence is imposed upon a defendant convicted of
40 attempted murder in the first degree as defined in article one hundred
41 ten of this chapter and subparagraph (i), (ii) or (iii) of paragraph (a)
42 of subdivision one and paragraph (b) of subdivision one of section
43 125.27 of this chapter or attempted aggravated murder as defined in
44 article one hundred ten of this chapter and section 125.26 of this chap-
45 ter such minimum period shall be not less than twenty years nor more
46 than forty years.
47 [5. Life imprisonment without parole. Notwithstanding any other
48 provision of law, a defendant sentenced to life imprisonment without
49 parole shall not be or become eligible for parole or conditional
50 release. For purposes of commitment and custody, other than parole and
51 conditional release, such sentence shall be deemed to be an indetermi-
52 nate sentence. A defendant may be sentenced to life imprisonment without
53 parole upon conviction for the crime of murder in the first degree as
54 defined in section 125.27 of this chapter and in accordance with the
55 procedures provided by law for imposing a sentence for such crime. A
56 defendant who was eighteen years of age or older at the time of the
S. 2779 3
1 commission of the crime must be sentenced to life imprisonment without
2 parole upon conviction for the crime of terrorism as defined in section
3 490.25 of this chapter, where the specified offense the defendant
4 committed is a class A-I felony; the crime of criminal possession of a
5 chemical weapon or biological weapon in the first degree as defined in
6 section 490.45 of this chapter; or the crime of criminal use of a chemi-
7 cal weapon or biological weapon in the first degree as defined in
8 section 490.55 of this chapter; provided, however, that nothing in this
9 subdivision shall preclude or prevent a sentence of death when the
10 defendant is also convicted of the crime of murder in the first degree
11 as defined in section 125.27 of this chapter. A defendant who was seven-
12 teen years of age or younger at the time of the commission of the crime
13 may be sentenced, in accordance with law, to the applicable indetermi-
14 nate sentence with a maximum term of life imprisonment. A defendant must
15 be sentenced to life imprisonment without parole upon conviction for the
16 crime of murder in the second degree as defined in subdivision five of
17 section 125.25 of this chapter or for the crime of aggravated murder as
18 defined in subdivision one of section 125.26 of this chapter. A defend-
19 ant may be sentenced to life imprisonment without parole upon conviction
20 for the crime of aggravated murder as defined in subdivision two of
21 section 125.26 of this chapter.]
22 § 3. Subdivision 3 of section 70.00 of the penal law is amended by
23 adding a new paragraph (c) to read as follows:
24 (c) Notwithstanding any other provision of the law to the contrary,
25 for any felony, regardless of sentence, all defendants sentenced shall
26 become eligible for parole after serving no more than twenty-five years
27 of their sentence; and further, notwithstanding any other provision of
28 the law to the contrary, no defendant shall be sentenced to consecutive
29 terms of imprisonment which exceed a twenty-five year sentence.
30 § 4. Subdivision 3 of section 70.02 of the penal law is amended by
31 adding a new paragraph (e) to read as follows:
32 (e) Notwithstanding any other provision of the law to the contrary,
33 for any felony defined in this section, regardless of sentence, all
34 defendants sentenced shall become eligible for parole after serving no
35 more than twenty-five years of their sentence; and further, notwith-
36 standing any other provision of the law to the contrary, no defendant
37 shall be sentenced to consecutive terms of imprisonment which exceed a
38 twenty-five year sentence.
39 § 5. Section 70.04 of the penal law is amended by adding a new subdi-
40 vision 5 to read as follows:
41 5. Parole eligibility and consecutive terms of imprisonment. Notwith-
42 standing any other provision of the law to the contrary, for any felony
43 defined in this section, regardless of sentence, all defendants
44 sentenced shall become eligible for parole after serving no more than
45 twenty-five years of their sentence; and further, notwithstanding any
46 other provision of the law to the contrary, no defendant shall be
47 sentenced to consecutive terms of imprisonment which exceed a twenty-
48 five year sentence.
49 § 6. Section 70.06 of the penal law is amended by adding a new subdi-
50 vision 8 to read as follows:
51 8. Parole eligibility and consecutive terms of imprisonment. Notwith-
52 standing any other provision of the law to the contrary, for any felony
53 defined in this section, regardless of sentence, all defendants
54 sentenced shall become eligible for parole after serving no more than
55 twenty-five years of their sentence; and further, notwithstanding any
56 other provision of the law to the contrary, no defendant shall be
S. 2779 4
1 sentenced to consecutive terms of imprisonment which exceed a twenty-
2 five year sentence.
3 § 7. Section 70.07 of the penal law is amended by adding a new subdi-
4 vision 6 to read as follows:
5 6. Notwithstanding any other provision of the law to the contrary,
6 for any felony defined in this section, regardless of sentence, all
7 defendants sentenced shall become eligible for parole after serving no
8 more than twenty-five years of their sentence; and further, notwith-
9 standing any other provision of the law to the contrary, no defendant
10 shall be sentenced to consecutive terms of imprisonment which exceed a
11 twenty-five year sentence.
12 § 8. Section 70.08 of the penal law is amended by adding a new subdi-
13 vision 4 to read as follows:
14 4. Parole eligibility and consecutive terms of imprisonment. Notwith-
15 standing any other provision of the law to the contrary, for any felony
16 defined in this section, regardless of sentence, all defendants
17 sentenced shall become eligible for parole after serving no more than
18 twenty-five years of their sentence; and further, notwithstanding any
19 other provision of the law to the contrary, no defendant shall be
20 sentenced to consecutive terms of imprisonment which exceed a twenty-
21 five year sentence.
22 § 9. Section 70.10 of the penal law is amended by adding a new subdi-
23 vision 3 to read as follows:
24 3. Parole eligibility and consecutive terms of imprisonment. Notwith-
25 standing any other provision of the law to the contrary, for any felony
26 defined in this section, regardless of sentence, all defendants
27 sentenced shall become eligible for parole after serving no more than
28 twenty-five years of their sentence; and further, notwithstanding any
29 other provision of the law to the contrary, no defendant shall be
30 sentenced to consecutive terms of imprisonment which exceed a twenty-
31 five year sentence.
32 § 10. Subdivision 2-a of section 70.20 of the penal law is REPEALED.
33 § 11. Section 70.71 of the penal law is amended by adding a new
34 subdivision 6 to read as follows:
35 6. Parole eligibility and consecutive terms of imprisonment. Notwith-
36 standing any other provision of the law to the contrary, for any felony
37 defined in this section, regardless of sentence, all defendants
38 sentenced shall become eligible for parole after serving no more than
39 twenty-five years of their sentence; and further, notwithstanding any
40 other provision of the law to the contrary, no defendant shall be
41 sentenced to consecutive terms of imprisonment which exceed a twenty-
42 five year sentence.
43 § 12. Subdivision 3 of section 70.80 of the penal law, as added by
44 chapter 7 of the laws of 2007, is amended and a new subdivision 10 is
45 added to read as follows:
46 3. Except as provided by subdivision four, five, six, seven or eight
47 of this section, or when a defendant is being sentenced for a conviction
48 of the class A-II felonies of predatory sexual assault and predatory
49 sexual assault against a child as defined in sections 130.95 and 130.96
50 of this chapter, or for any class A-I sexually motivated felony for
51 which a life sentence [or a life without parole sentence] with eligibil-
52 ity for parole after twenty-five years must be imposed, a sentence
53 imposed upon a defendant convicted of a felony sex offense shall be a
54 determinate sentence. The determinate sentence shall be imposed by the
55 court in whole or half years, and shall include as a part thereof a
56 period of post-release supervision in accordance with subdivision two-a
S. 2779 5
1 of section 70.45 of this article. Persons eligible for sentencing under
2 section 70.07 of this article governing second child sexual assault
3 felonies shall be sentenced under such section and paragraph (j) of
4 subdivision two-a of section 70.45 of this article.
5 10. Notwithstanding any other provision of the law to the contrary,
6 for any felony defined in this section, regardless of sentence, all
7 defendants sentenced shall become eligible for parole after serving no
8 more than twenty-five years of their sentence; and further, notwith-
9 standing any other provision of the law to the contrary, no defendant
10 shall be sentenced to consecutive terms of imprisonment which exceed a
11 twenty-five year sentence.
12 § 13. Paragraph (d) of subdivision 2 of section 490.25 of the penal
13 law, as added by chapter 300 of the laws of 2001, is amended to read as
14 follows:
15 (d) Notwithstanding any other provision of law, when a person is
16 convicted of a crime of terrorism pursuant to this section, and the
17 specified offense is a class A-I felony offense, the sentence upon
18 conviction of such offense shall be life imprisonment [without parole]
19 with eligibility for parole after twenty-five years; provided, however,
20 that nothing herein shall preclude or prevent a sentence of death when
21 the specified offense is murder in the first degree as defined in
22 section 125.27 of this chapter.
23 § 14. Subdivision 2 of section 136 of the correction law, as added by
24 chapter 431 of the laws of 2015, is amended to read as follows:
25 2. All inmates admitted to the department serving a determinate term
26 of imprisonment, or an indeterminate sentence of imprisonment other than
27 a sentence of life imprisonment [without parole,] with eligibility for
28 parole after twenty-five years who have been evaluated upon admission
29 pursuant to subdivision one of section one hundred thirty-seven of this
30 article and are determined to be capable of successfully completing the
31 academic course work required for the test assessing secondary
32 completion, shall be provided with the opportunity to complete such
33 course work at least two months prior to the date on which such inmate
34 may be paroled, conditionally released, released to post-release super-
35 vision pursuant to section 70.40 of the penal law, or presumptively
36 released, pursuant to section eight hundred three of this chapter. Upon
37 admission to the department, such inmates will be provided with written
38 notice that the test assessing secondary completion programs are avail-
39 able for all inmates who so apply.
40 § 15. Paragraph (e) of subdivision 5 of section 220.10 of the criminal
41 procedure law, as amended by chapter 1 of the laws of 1995, is amended
42 to read as follows:
43 (e) A defendant may not enter a plea of guilty to the crime of murder
44 in the first degree as defined in section 125.27 of the penal law;
45 provided, however, that a defendant may enter such a plea with both the
46 permission of the court and the consent of the people when the agreed
47 upon sentence is either life imprisonment [without parole] with eligi-
48 bility for parole after twenty-five years or a term of imprisonment for
49 the class A-I felony of murder in the first degree other than a sentence
50 of life imprisonment [without parole] with eligibility for parole after
51 twenty-five years.
52 § 16. Subparagraph (vii) of paragraph (b) of subdivision 3 of section
53 220.30 of the criminal procedure law, as amended by chapter 1 of the
54 laws of 1995, is amended to read as follows:
55 (vii) A defendant may not enter a plea of guilty to the crime of
56 murder in the first degree as defined in section 125.27 of the penal
S. 2779 6
1 law; provided, however, that a defendant may enter such a plea with both
2 the permission of the court and the consent of the people when the
3 agreed upon sentence is either life imprisonment [without parole] with
4 eligibility for parole after twenty-five years or a term of imprisonment
5 for the class A-I felony of murder in the first degree other than a
6 sentence of life imprisonment [without parole] with eligibility for
7 parole after twenty-five years.
8 § 17. Subdivision 1, paragraphs (b) and (e) of subdivision 11 and
9 paragraphs (b), (c) and (e) of subdivision 12 of section 400.27 of the
10 criminal procedure law, as added by chapter 1 of the laws of 1995, are
11 amended to read as follows:
12 1. Upon the conviction of a defendant for the offense of murder in the
13 first degree as defined by section 125.27 of the penal law, the court
14 shall promptly conduct a separate sentencing proceeding to determine
15 whether the defendant shall be sentenced to death or to life imprison-
16 ment [without parole pursuant to subdivision five of section 70.00 of
17 the penal law] with eligibility for parole after twenty-five years.
18 Nothing in this section shall be deemed to preclude the people at any
19 time from determining that the death penalty shall not be sought in a
20 particular case, in which case the separate sentencing proceeding shall
21 not be conducted and the court may sentence such defendant to life
22 imprisonment [without parole] with eligibility for parole after twenty-
23 five years or to a sentence of imprisonment for the class A-I felony of
24 murder in the first degree other than a sentence of life imprisonment
25 [without parole] with eligibility for parole after twenty-five years.
26 (b) If the jury directs imposition of either a sentence of death or
27 life imprisonment [without parole] with eligibility for parole after
28 twenty-five years, it shall specify on the record those mitigating and
29 aggravating factors considered and those mitigating factors established
30 by the defendant, if any.
31 (e) If the jury unanimously determines that a sentence of life impri-
32 sonment [without parole] with eligibility for parole after twenty-five
33 years should be imposed the court must thereupon impose a sentence of
34 life imprisonment [without parole] with eligibility for parole after
35 twenty-five years.
36 (b) In the event the defendant is sentenced pursuant to this section
37 to life imprisonment [without parole] with eligibility for parole after
38 twenty-five years or to a term of imprisonment for the class A-I felony
39 of murder in the first degree other than a sentence of life imprisonment
40 [without parole] with eligibility for parole after twenty-five years,
41 the court shall not render a finding with respect to whether the defend-
42 ant is mentally retarded.
43 (c) In the event the defendant is sentenced pursuant to this section
44 to death, the court shall thereupon render a finding with respect to
45 whether the defendant is mentally retarded. If the court finds the
46 defendant is mentally retarded, the court shall set aside the sentence
47 of death and sentence the defendant either to life imprisonment [without
48 parole] with eligibility for parole after twenty-five years or to a term
49 of imprisonment for the class A-I felony of murder in the first degree
50 other than a sentence of life imprisonment [without parole] with eligi-
51 bility for parole after twenty-five years. If the court finds the
52 defendant is not mentally retarded, then such sentence of death shall
53 not be set aside pursuant to this subdivision.
54 (e) The foregoing provisions of this subdivision notwithstanding, at a
55 reasonable time prior to the commencement of trial the defendant may,
56 upon a written motion alleging reasonable cause to believe the defendant
S. 2779 7
1 is mentally retarded, apply for an order directing that a mental retar-
2 dation hearing be conducted prior to trial. If, upon review of the
3 defendant's motion and any response thereto, the court finds reasonable
4 cause to believe the defendant is mentally retarded, it shall promptly
5 conduct a hearing without a jury to determine whether the defendant is
6 mentally retarded. In the event the court finds after the hearing that
7 the defendant is not mentally retarded, the court must, prior to
8 commencement of trial, enter an order so stating, but nothing in this
9 paragraph shall preclude a defendant from presenting mitigating evidence
10 of mental retardation at a separate sentencing proceeding. In the event
11 the court finds after the hearing that the defendant, based upon a
12 preponderance of the evidence, is mentally retarded, the court must,
13 prior to commencement of trial, enter an order so stating. Unless the
14 order is reversed on an appeal by the people or unless the provisions of
15 paragraph (d) of this subdivision apply, a separate sentencing proceed-
16 ing under this section shall not be conducted if the defendant is there-
17 after convicted of murder in the first degree. In the event a separate
18 sentencing proceeding is not conducted, the court, upon conviction of a
19 defendant for the crime of murder in the first degree, shall sentence
20 the defendant to life imprisonment [without parole] with eligibility for
21 parole after twenty-five years or to a sentence of imprisonment for the
22 class A-I felony of murder in the first degree other than a sentence of
23 life imprisonment [without parole] with eligibility for parole after
24 twenty-five years. Whenever a mental retardation hearing is held and a
25 finding is rendered pursuant to this paragraph, the court may not
26 conduct a hearing pursuant to paragraph (a) of this subdivision. For
27 purposes of this subdivision and paragraph (b) of subdivision nine of
28 this section, "mental retardation" means significantly subaverage gener-
29 al intellectual functioning existing concurrently with deficits in adap-
30 tive behavior which were manifested before the age of eighteen.
31 § 18. Subdivision 1 of section 440.20 of the criminal procedure law,
32 as amended by chapter 1 of the laws of 1995, is amended to read as
33 follows:
34 1. At any time after the entry of a judgment, the court in which the
35 judgment was entered may, upon motion of the defendant, set aside the
36 sentence upon the ground that it was unauthorized, illegally imposed or
37 otherwise invalid as a matter of law. Where the judgment includes a
38 sentence of death, the court may also set aside the sentence upon any of
39 the grounds set forth in paragraph (b), (c), (f), (g) or (h) of subdivi-
40 sion one of section 440.10 as applied to a separate sentencing proceed-
41 ing under section 400.27, provided, however, that to the extent the
42 ground or grounds asserted include one or more of the aforesaid para-
43 graphs of subdivision one of section 440.10, the court must also apply
44 subdivisions two and three of section 440.10, other than paragraph (d)
45 of subdivision two of such section, in determining the motion. In the
46 event the court enters an order granting a motion to set aside a
47 sentence of death under this section, the court must either direct a new
48 sentencing proceeding in accordance with section 400.27 or, to the
49 extent that the defendant cannot be resentenced to death consistent with
50 the laws of this state or the constitution of this state or of the
51 United States, resentence the defendant to life imprisonment [without
52 parole] with eligibility for parole after twenty-five years or to a
53 sentence of imprisonment for the class A-I felony of murder in the first
54 degree other than a sentence of life imprisonment [without parole] with
55 eligibility for parole after twenty-five years. Upon granting the
56 motion upon any of the grounds set forth in the aforesaid paragraphs of
S. 2779 8
1 subdivision one of section 440.10 and setting aside the sentence, the
2 court must afford the people a reasonable period of time, which shall
3 not be less than ten days, to determine whether to take an appeal from
4 the order setting aside the sentence of death. The taking of an appeal
5 by the people stays the effectiveness of that portion of the court's
6 order that directs a new sentencing proceeding.
7 § 19. Paragraphs (b) and (c) of subdivision 5 of section 470.30 of the
8 criminal procedure law, as added by chapter 1 of the laws of 1995, are
9 amended to read as follows:
10 (b) set the sentence aside and remand the case for resentencing pursu-
11 ant to the procedures set forth in section 400.27 for a determination as
12 to whether the defendant shall be sentenced to death, life imprisonment
13 [without parole] with eligibility for parole after twenty-five years or
14 to a term of imprisonment for the class A-I felony of murder in the
15 first degree other than a sentence of life imprisonment [without parole]
16 with eligibility for parole after twenty-five years; or
17 (c) set the sentence aside and remand the case for resentencing by the
18 court for a determination as to whether the defendant shall be sentenced
19 to life imprisonment [without parole] with eligibility for parole after
20 twenty-five years or to a term of imprisonment for the class A-I felony
21 of murder in the first degree other than a sentence of life imprisonment
22 [without parole] with eligibility for parole after twenty-five years.
23 § 20. The opening paragraph of subdivision 1 of section 70.25 of the
24 penal law, as amended by chapter 372 of the laws of 1981, is amended to
25 read as follows:
26 Except as provided in subdivisions two, two-a and five of this
27 section, when multiple sentences of imprisonment are imposed on a person
28 at the same time, or when a person who is subject to any undischarged
29 term of imprisonment imposed at a previous time by a court of this state
30 is sentenced to an additional term of imprisonment, the sentence or
31 sentences imposed by the court shall run either concurrently or consec-
32 utively with respect to each other and the undischarged term or terms in
33 such manner as the court directs at the time of sentence. Notwithstand-
34 ing any other provision of the law to the contrary, no defendant shall
35 be sentenced to serve consecutive terms of imprisonment which exceed a
36 twenty-five year sentence. If the court does not specify the manner in
37 which a sentence imposed by it is to run, the sentence shall run as
38 follows:
39 § 21. This act shall take effect on the ninetieth day after it shall
40 have become a law.
